I hired a restoration company. They haven't paid their subcontractor for work done to my property. Can the subcontractor post a Lien on my property?
If the property is your home and you live there (and it is in Arizona), then the short answer is that the unpaid subcontractor does not have mechanic's lien rights if you did not have a written contract with that subcontractor. A.R.S. sec. 33-1002(B) states: "No lien provided for in this article shall be allowed or recorded by the person claiming a lien against the dwelling of a person who became an owner-occupant prior to the construction, alteration, repair or improvement, except by a person having caused in writing a contract directly with the owner-occupant." To be considered an "owner-occupant," you must (a) be a natural person; (b) hold legal or equitable title to the dwelling by deed or contract for the conveyance of real property that has been recorded with the county recorder before commencement of construction; and (c) reside or intend to reside in the dwelling for at least 30 days during the twelve-month period following completion of the construction…and must not intend to sell or lease the dwelling to others. Additionally, if you are not an owner-occupant and/or if you did have a direct contract with the unpaid subcontractor, there are certain steps any contractor or subcontractor must take in order to preserve their lien rights, which include sending you a 20-day preliminary lien notice within 20 days of the date the subcontractor began its work. If you did not receive such a "pre-lien" notice, it is likely the subcontractor lost any lien rights it might have had. If the subcontractor files a false lien against your property, you will then have an affirmative statutory claim against that subcontractor for filing the false lien under A.R.S. sec. 33-420. Believe it or not, many subcontractors think they have lien rights on residential (owner-occupant) jobs when they do not, and then fall into the trap of filing a false lien. If a lien is filed against your property, you should contact a lawyer promptly.See question
i am a licensed contractor.
You should talk to a lawyer specializing in Construction Law, preferably a firm that has an office in the county where the lien will be recorded (although that is not required but it would be helpful from a logistical standpoint as you may ultimately need to file a lawsuit to foreclose on the lien and I suspect you would want a local law firm representing you). Before recording a Mechanics' and Materialmen's Lien in Arizona, there are a number of statutory requirements that must be followed. Some of those requirements are time sensitive, such as when you send your 20-Day Preliminary Notice, so I recommend that you act quickly if you plan to record such a lien. Good luck!See question